Kapoor v State Transit Authority of NSW

Judgment

1. [1]

   MACFARLAN JA: This is an application by Mr Ameet Kapoor for leave to appeal against a decision of Bozic DCJ of 4 May 2012 dismissing, for want of prosecution, proceedings brought by Mr Kapoor against the State Transit Authority of NSW ("STA"). The proceedings related to injuries that Mr Kapoor alleged that he sustained when on 15 March 2001 an STA bus in which he was a passenger hit a pothole. He commenced the proceedings on 2 March 2004 but did not avail himself of any of the many opportunities he had to have his claim heard and determined on its merits.

2. [2]

   On 3 October 2008 Delaney DCJ dismissed the proceedings for want of prosecution but that order was set aside by this Court on 24 June 2010 (Kapoor v State Transit Authority of NSW [2010] NSWCA 143). In its judgment the Court described the matter as having had to that date "a long and unfortunate history" ([4]). Regrettably that description continued to be applicable to the proceedings as they continued after 24 June 2010.

3. [3]

   It is unnecessary to repeat the history to 2010 described in that judgment. In summary, the following occurred in the proceedings thereafter:

4. [4]

   In his thorough judgment, Bozic DCJ examined the history of the proceedings and considered whether Mr Kapoor was able to explain satisfactorily his failure to appear at the hearing on 5 March 2012.

5. [5]

   In particular his Honour analysed the medical evidence tendered by Mr Kapoor to explain his non-attendance on that date, as well as on 27 September 2011, but found no justification in it for Mr Kapoor's failure to attend.

6. [6]

   His Honour's concluding observations included the following: "In my view the plaintiff has now had abundant opportunity to prosecute his case. Since the filing of the statement of claim in 2004 this case has been set down for hearing on six occasions: 1 March 2005, 30 November 2007, 31 January 2008, 9 May 2011, 26 September 2011, 5 March 2012. The failure of the plaintiff to attend on 5 March 2012 was not the first time the plaintiff failed to appear when the matter was set down for hearing. He also failed to appear at the hearing set down for 31 January 2008 and he failed to appear at the hearing on 9 May 2011. This means that on three of the six occasions this matter has been set down for hearing the plaintiff has not appeared" (pp 16 - 17).

7. [7]

   In support of his application to this Court, Mr Kapoor has lodged lengthy written submissions dated 3 August 2012, 27 May 2013 and today. None of them in my view raise any arguable point in support of the application for leave to appeal. As a result, I do not consider that Mr Kapoor has raised any doubt as to the correctness of Bozic DCJ's decision.

8. [8]

   There are only three points that warrant mention.

9. [9]

   First, Mr Kapoor contends that the affidavit of Ms Medland was not properly before the Court, apparently because certain of its annexures were "withdrawn" by the STA's counsel at the hearing on 26 April 2012. This is a reference to Bozic DCJ noting at the hearing that certain of the annexures and parts of the affidavit were not relied upon. There is nothing in his Honour's judgment to suggest that he took into account any excluded material.

10. [10]

    Secondly, Mr Kapoor asserts that Bozic DCJ did not give proper consideration to his affidavit filed in opposition to the motion. The terms of his Honour's judgment indicate that this was not the case.

11. [11]

    Thirdly, Mr Kapoor relies in this application on a report of Dr Natalie Hitchens dated 4 October 2012 which post-dates the decision of Bozic DCJ. Even if admitted into evidence, the report would not assist Mr Kapoor because it does not provide evidence of an inability on Mr Kapoor's part to attend Court on 5 March 2012, or indeed on the date of Dr Hitchens' report.

12. [12]

    I should add that Mr Kapoor asserted that the STA should not be allowed to rely upon its written submissions filed on 20 June 2013, and which he allegedly did not receive until 5 July 2013. These responded to Mr Kapoor's submissions of 27 May 2013. As there is no reason to conclude that Mr Kapoor has not had ample time to deal with the submissions, and indeed he has not asserted that he has not, the STA is entitled to rely upon them.

13. [13]

    As Mr Kapoor has no prospect of succeeding on an appeal, his application for leave to appeal should be dismissed with costs.

14. [14]

    MEAGHER JA: I agree with Macfarlan JA for the reasons he gives that the application for leave to appeal should be dismissed with costs.